Is There Room For Improvement In N.H.'s Sexual Harassment Laws?

Oct 31, 2017

Credit Allegra Boverman for NHPR

Allegations of sometimes serial sexual harassment involving high-profile perpetrators have led to an outpouring of outrage. And in many cases, predatory behavior appears to have gone on for years, even decades, with multiple victims either afraid to come forward or kept silent by nondisclosure agreements. Often many others knew of inappropriate or bullying behavior but failed to speak up.

Why, despite state and federal laws, employment policies, and workplace training programs designed to raise awareness about sexual harassment, has the problem persisted? And will the heightened awareness in the wake of this rush of revelations amount to a turning point?

The Exchange put these questions to Representative Debra Altschiller, Sarah Mattson Dustin of the N.H. Women's Foundation, and employment attorney Terri Pastori.   Listen here for the full conversation. 

 (Comments have been slightly edited for conciseness and clarity).

Why has sexual harassment in the workplace continued despite changes in policy and laws addressing the problem?

Debra Altschiller: When women are in spaces like a workplace there's a credibility deficit, and in mixed gender spaces like workplaces we have less credibility due to an implicit bias. And because of that implicit bias, when you do speak out about sexual harassment or mistreatment in the workplace, the bias is against your story and with your perpetrators.

Sarah Mattson Dustin:  Well I think one of the things that's really important to keep in mind is that sexual harassment is often, perhaps even most of the time, not about sex. It's a manifestation of power and powerlessness in the workplace, and women are more likely to be victimized by sexual harassment because they are less likely to be in positions of power and influence. So it's not that this is just some terribly misguided form of seduction. It's a tool that can be used to assert dominance or maintain dominance by making women feel like they're not taken seriously or that they're unsafe. So that's why at the New Hampshire Women's Foundation this is so important to us because if women don't feel safe in the work place and if they're not able to advance and be compensated in the way they deserve, you're erecting really enormous obstacles to women having full participation in our labor force.

I'm a waitress and I don't think there's any waitress in this state or country who hasn't dealt with sexual harassment. I recently returned to waiting tables part time and the first customer I waited on made comments about my physical appearance that made me very uncomfortable with his wife sitting right there. If this comment were made by a colleague or a peer I wouldn't hesitate to push back. I depend on customers like him for tips so I smiled, feigned laughter, and swallowed my anger. How can we start to address sexual harassment by customers in the service industry?

Mattson Dustin responds: We need to keep in mind that the accusers of someone like Harvey Weinstein or many of the other really visible men that have been accused of late are mostly affluent. They have a public platform to tell their stories to a largely sympathetic audience. And there are millions of women in this country just like Sarah who are faced with a really impossible decision between pushing back as she described it or reporting sexual harassment, and their livelihood -- between being able to pay the rent and put food on the table for their kids.

So we really need to keep in mind that just because some women have been able to come forward and tell their stories right now at this moment does not mean that all women are. And you know if I owned a restaurant myself I think that I would want to invest meaningful time and meaningful money in making sure that my employees were protected from sexual harassment at the hands of customers.

What role do nondisclosure agreements play?

Altschiller: They're exceptionally common. They favor the perpetrator. The person who's been harassed and the harasser or their company agrees on a settlement of some sort and the person who's been suffering from sexual harassment can take a monetary payment of some sort and either stay in the company or make another move, but they may never talk about it.

The perpetrator the perpetrator is allowed to continue working in their position, continue to collect a paycheck and usually doesn't get a demotion. And they move on and they do this again because it's about power and control. They control the situation. They have all the power to keep it quiet. And now they're just moving on to their next victim.

Some states are moving to ban nondisclosure agreements. Might that happen in New Hampshire? 

Altschiller: There's an opportunity for the legislature to move forward and make these types of agreements illegal. We will absolutely be discussing that, now that we know how how pervasive this is. And we know that this is pervasive in the House. The House has a sexual harassment prevention policy in place and all that's required is to read a three-page document and sign that you read it, not that you agree, not that you are bound by it, not that you will modify your behavior to follow it, but just that you have read this document. And still we have members of the House who say I'm not signing that because it impinges on my free speech to be able to harass people.

We have examples on the floor of the House where where male lawmakers have made comments about female lawmakers' breasts, who have gone on social media and talked about how they are the last person they would want to see naked. We have male lawmakers who have made comments about wanting to protect people who have engaged in prostitution with children. This is the kind of speech, these are the exact lawmakers who say I'm not signing that because it impinges on my ability to express myself, regardless of the fallout around me.

Do these agreements sometimes serve good purposes?

Terri Pastori: I see it both ways. There are lots of claims, lots of complaints, lots of lawsuits that are filed and sometimes they resolve in favor of the employee who's complaining about harassment and sometimes they resolve in favor of the employer. It does happen that people can be wrongfully accused.

And so sometimes companies will make business decisions to resolve the case, resolve a complaint, and pay a monetary amount in order to do so. And they make those decisions for business reasons – to stay out of the news, to not tie up resources and personnel fighting this lawsuit or fighting this charge of discrimination or harassment. And so they make those decisions in an effort to buy peace and to allow everybody to move on. And there are business justifications for having a confidentiality provision in it because if somebody who brought the claim forward then speaks to somebody else and somebody else, there could be somewhat of a bandwagon effect -- or other people making claims – so in exchange for the monetary piece there is typically a confidentiality provision in the settlement agreements.

There are also non-monetary pieces in these settlement agreements and in negotiating -- especially if the employee is represented by counsel. You can talk about other viable mechanisms -- whether it's somebody gets transferred, demoted, has to go through training. If you get the EEOC or Human Rights Commission involved, that can also help in terms of rooting out systemic harassment and requiring training and other mechanisms as well. 

Many companies conduct workplace training on the issue of sexual harassment. Are they effective? 

Pastori:  A recent study by the EEOC indicated that training hasn't been effective. You can do all the training that you want but then if the company doesn't follow through isn't consistent with the enforcement of the policy, doesn't discipline people who violate the policy. What good was the training. It sends the wrong message. Some key questions: Does the company give employees options for reporting harassment -- more than one person to confide in, for instance? Does the company insist on zero tolerance? 

Altschiller:   Policies should be specific, prohibiting uninvited touching, displaying of sexually graphic material on posters or pinups or screen savers, or items on bulletin boards.   

Is there a loophole when it comes to small nonprofits and sexual harassment laws?

Pastori: The New Hampshire Law against Discrimination is found at RSA 354 - It specifically defines employers in a way that there are some employers that are not covered.  And so it doesn't include employers with fewer than six persons. And then it also doesn't apply to exclusively social clubs and fraternal or religious associations or corporations, if such club, association, or corporation is not organized for private profit.  So on its face, it doesn't cover some nonprofits.  It does, however, cover other types of non-profits – charitable and educational associations and corporations.  And so that certainly leaves a gap on the state level. 

 How is sexual harassment defined?

Mattson Dustin: The simplest way to think about it is that it's unwelcome conduct that's of a sexual nature or based on someone's sex. And in some cases that unwelcome conduct amounts to illegal sex discrimination. And in some cases it may not. Sexual harassment is a term that we all use but sex discrimination is defined very specifically in our state and federal laws.

 How about asking someone out for a date, is that harassment?

Pastori: Under the hostile work environment umbrella, the definition under the statute is: such conduct that has the purpose of unreasonably interfering with an individual's work performance or creating an intimidating hostile or offensive work environment. You could argue that one invitation to go out for dinner that was declined and the inviter didn't follow up, wouldn't rise to that level.

 If the inviter is a supervisor, the issue of quid pro quo can become an issue: If the subordinate declined the invitation and then all of a sudden didn't get vacation approved or got a demotion or the raise the employee was anticipating didn't come through, then we would look and see whether there was a causal connection between the two. And it certainly could be.

Companies can have policies in place about workplace dating -- for example, prohibit the dating, the fraternization between superiors and subordinates. And then also have policies about co-worker dating. And I know a lot of employers are reluctant to stick their toe in that water. And you can understand that. But a lot of harassment claims spawn from relationships that have gone bad. And so it's certainly something worth considering. And as an employer it's not a best practice to allow a supervisor to be supervising a subordinate who they're having a relationship with.

 Some companies have policies in place that there has to be disclosure of a relationship. So the company is on notice as to what's going on and they can take appropriate steps. It's a thorny situation. At what level do you disclose?  Is it after the first date, the second date, or when you're in an actual relationship? These are thorny issues but companies are wise to keep their eyes open because you don't want to find out about a relationship between a superior and a subordinate after there's a problem and somebody's made a complaint to HR.

What's HR's role?

Altschiller: Their role is to serve the company. They have an opportunity to create those prevention programs and to implement those prevention programs and to make sure that everyone is apprised of what the policies are and keeping people updated. But it's my experience that if you are experiencing harassment in the workplace, your first call should be to an attorney and then to human resources because human resources while they can help smooth over some rough edges, they're not there to advocate for you.

 Pastori: Many HR professionals get the proper training to know what their legal responsibilities are. Companies should invest in proper training. The N.H. Supreme Court issued a decision and held that individuals can be liable themselves for aiding and abetting harassment and discrimination. So it wouldn't surprise me if we see individuals names, whether it be someone in HR, the harasser, or other managers who knew there was a problem and did nothing about it. 

How about going directly to the police? 

Pastori: For unwanted attention or calls, you could get a restraining order through police. That's certainly an option, as is calling an employment law attorney if you need some help and coaching through the situation; you can also talk to your colleagues, a mentor at work, a manager, or Human Resources. You can reaching out to the Human Rights Commission here in Concord or to the Equal Employment Opportunity Commission in Boston. They both have Web sites contact information. So there are many options. You don't have to go through this alone.  No one should dictate what you do. But certainly from an employer perspective, if an employee of mine was in a situation where they felt they were being harassed or made uncomfortable, I would want to know so that I could do something about it. Look into it, investigate, and figure out what's going on and take some corrective actions. 

Altschiller: Any time there's a sexual assault, it's a crime and the person who's been assaulted has the ultimate choice to decide whether they want to go forward and press charges. Whenever someone has been sexually assaulted, as a member of Haven, we encourage people to get medical treatment just to check out make sure that you're healthy and safe. And then from there it's your choice if you want to go forward and press charges. So the police are there in a supporting role really until the person who's been assaulted has chosen to come forward and share their story.